[2018] KEHC 5962 (KLR)
The court declined to confirm the grant and stayed the distribution of the estate because the suit land, forming part of the estate, was subject to a prior sale to the protestor, who had been put in possession and had developed the land. The dispute had been adjudicated by a land tribunal, whose award was adopted as...
Source-derived case information.
- Citation
- [2018] KEHC 5962 (KLR)
- Parties
- Applicant: Kameme Kituma Nganda; Respondent: Julius Muthungu Mukanda
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 197 of 2017
- Procedural Posture
- Probate and Administration / Ruling on Confirmation of Grant and Protest
- Outcome
- Confirmation of grant and distribution stayed; parties directed to lodge ownership dispute in the Environment and Land Court; protestor given 30 days to file ELC case, failing which distribution will proceed.
- Judges
- CM Kariuki
- Legal Topics
- Confirmation of Grant, Land Ownership Dispute, Distribution of Estate, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kameme Kituma Nganda
Applicant
Julius Muthungu Mukanda
Respondent
Procedural Posture
Probate and Administration / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the grant of letters of administration should be confirmed in light of the protestor's claim to the suit land.
- 2 Whether the protestor is entitled to ownership of the suit land based on prior sale and tribunal judgment.
- 3 Whether the estate can be distributed before determination of ownership by the Environment and Land Court.
Ratio Decidendi
The court declined to confirm the grant and stayed the distribution of the estate because the suit land, forming part of the estate, was subject to a prior sale to the protestor, who had been put in possession and had developed the land. The dispute had been adjudicated by a land tribunal, whose award was adopted as a court judgment, which remained unchallenged and in force, including an eviction order against the applicant. The court held that the proper forum for determination of ownership rights over the suit land is the Environment and Land Court (ELC). Accordingly, the probate proceedings regarding confirmation and distribution are stayed to allow the parties to lodge a case before...
Court Disposition
Confirmation of grant and distribution stayed; parties directed to lodge ownership dispute in the Environment and Land Court; protestor given 30 days to file ELC case, failing which distribution will proceed.
Orders
- Confirmation of grant and distribution of estate are stayed.
- Parties to lodge a case before the Environment and Land Court for determination of ownership rights over the suit land.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC P&A NO. 197 OF 2017
FORMERLY MACHAKOS HC P&A NO. 53 OF 2008
IN THE MATTER OF THE ESTATE OF KITUMA NGAUNDA MUSAU (DECEASED)
KAMEME KITUMA NGANDA....................PETITIONER
VERSUS
JULIUS MUTHUNGU MUKANDA...........PROTESTOR
RULING
1. This matter came for hearing of Application dated and filed on 22/12/2008 for Confirmation of Grant before Mutende J. and a Ruling on 22/10/2015.
2. The same has been opposed by protest lodged by Julius Muthungu Mukanda.
3. The court declined to confirm grant as the deceased sold suit land to the protestor and put him in possession where of he developed it by erecting permanent structures.
4. Subsequently, a land dispute tribunal heard the matter and awarded same land to the protestor and same verdict was entered into a court judgment which remains in force and unchallenged.
5. There was even order for eviction of the Petitioner and her family from the suit land.
6. What remains is the formal transfer of suit land into the protestor’s name.
7. Thus this court rejects the claim for distribution and directs the parties to lodge case to the ELC court for determination as to their ownership right thereof.
8. The protest and confirmation of grant and even distribution are therefore stayed to avail opportunity to the ELC court time for determination of issues once claim is lodged.
9. The protestor has 30 days to file ELC case in default this court to proceed with distribution process.
THIS RULING SIGNED, DELIVERED THIS 21ST DAY OF JUNE 2018, IN OPEN COURT.
........................
C. KARIUKI
JUDGE